28 Kan. 816 | Kan. | 1882
This was an action in' the district court of Leavenworth county, tried upon an appeal from the assessment of damages for the right of way appropriated by the plaintiff in error. The commissioners assessed the value of the land taken at $366, and the other damage to defendant in error’s farm, by reason of such appropriation, at the sum of $600. From this assessment defendant in error appealed to the district court, and on trial in that court before a jury recovered the sum of $3,000, of which $500 was for the right of way appropriated, and $2,500 for the damage done to the remainder of the farm. From such judgment the railroad company brings error to- this court. The errors alleged are in the admission of testimony, the matter of instructions, and in the refusal of the court to submit one question propounded by the company.
I. After several witnesses had testified to the value of the farm, before and after the taking, and had stated upon what grounds they based their opinion as to the diminution of value, two witnesses were called and sworn, who testified that they did not know, the market value of the farm, but knew the farm itself, its situation and condition, both before and after the appropriation. They were then asked if they knew what per cent, of difference there was in the value before and after the appropriation. This testimony* was objected to, but the objection was overruled and the testimony admitted. This is the only question presented as to the admission of testimony.
II. The plaintiff’s testimony was that of himself and of several farmers, eleven in number. The defendant offered the testimony of four real-estate agents, whose valuation of the land taken and of the damages done to the farm was essentially different, and much less than that of the plaintiff’s witnesses. Upon this, the court gave this instruction :
“ Where a considerable number of witnesses, apparently in*819 telligent and reliable, substantially agree in estimating the value of or injury to a particular thing, that is a circumstance proper for the consideration of a jury.”
This is objected to as tending to induce the jury to place too great reliance on the number of witnesses presented by the plaintiff.
III. The plaintiff had testified that the strip of land taken ran through his orchard, which prior thereto had been wholly surrounded by a substantial hedge fence, and that by the building of the road two openings were made in this fence at some little distance from his house. In indicating wherein the farm was damaged, both the plaintiff and other witnesses testified that one matter which they took into consideration was the greater facility which was afforded to tramps and thieves for entering this orchard and stealing his fruit. Upon this the company asked this instruction:
“That the opinions of witnesses as to value, based upon the assumption of the probability of tramps or thieves entering the premises of plaintiff and committing the larceny of fruit or other things by reason of the construction of the road, shall not be considered or weighed by them in making up their verdict.”
This instruction the court refused to give, and the refusal is alleged as error.
IV. The court gave this.instruction:
“ If it were reasonable and proper that the plaintiff should construct and maintain a fence on each side of the road, then the cost thereof would be an item to be considered in estimating the damages; and I would suppose that the inconvenience in handling and caring for live stock would be a proper subject for consideration in estimating the damages, but the supreme court of the state, whose decision is binding upon you and me, has decided otherwise, and that excludes it.”
The giving of this instruction is also alleged as error.
V. The defendant asked the court to give this instruction:
“That the plaintiff after the condemnation of the strip of land is still the owner of the hundred feet in width, subject to the easement of the railroad company, and has the right*820 to every use of it which can be made without interfering with the operation of the road, 'and to all grass and other vegetation which shall grow thereon.”
But the court refused to give it, and this refusal is alleged, as error’.
YI. The defendant asked the court to submit this question to the jury:
“ If the land was worth less after than before the appropriation of the right of way, state what facts constituted the depreciation in value, each item separately, and the amount of each.”
But the court declined to submit the question, and this is alleged as error. These we think present all the matters which require notice at our hands; and of them in their order.
And first, in reference to the admission of testimony. This matter has embarrassed us not a little. We have great doubts as to whether the testimony was competent. It has already been decided in this court that as a general rule the opinion of a witness as to the amount of damages which the landowner sustains by reason of the establishment of a road across his land is not admissible as evidence. (Roberts v. The Comm’rs of Brown County, 21 Kas. 247.) It has also been decided that a witness may testify as to the value of land before the right of way was laid out, and also as to the value of land after it has been appropriated. (Rld Co. v. Allen, 24 Kas. 33.) Now this testimony touches both of these propositions. It is almost an expression of the witnesses’ opinion as to the amount of damages, and it is but little more than a statement of the difference in values before and after the appropriation. It is a familiar rule of evidence that witnesses are to state facts, and the jury form opinions. So stringent was this rule at one time, that a witness was not permited to testify as to values. (1 Greenl. on Ev., 13th ed., § 440, p. 494, and cases cited in note 2.) This was upon the theory that values were mere matters of opinion.
By degrees the rule was changed so far as to permit testimony as to-values. Some authorities considered it an exception to the rule 'forbidding the witness to give opinions,
As to the second matter complained of, there can be no doubt that the instruction given by the court is correct as an
As to the third matter complained of, the jury, in response to a special question, replied that they allowed the plaintiff no damages on account of 'the -liability of his fruit or other property to be stolen. As they did not take that matter into consideration in estimating the damages which they awarded, we think the failure of the court to give the instruction asked was a matter of no moment.
As to the fourth matter, we think that the cost of constructing a fence, if the construction of a fence was reasonable and proper under the circumstances under which the defendant’s road ran through the farm, was a proper matter for the consideration of the jury. The plaintiff had testified that he had already constructed a fence all along the line of the right of way, and in view of the manner in which as he states the
As to the fifth matter, we remark, that the court had partially instructed the jury upon the questions involved in the instruction refused. It had told them that the fee-simple title remained in the plaintiff, subject to the use by the railroad company for the purposes of its road. Now there was nO’ testimony tending to show how much of this right of way would actually be used by the railroad company. They would have a right to use every foot of it, covering it all with sidetracks or buildings. The extent of their use is a question of fact, and it was unnecessary, in the absence of any testimony, to particularize all the possible uses and advantages which the the plaintiff might retain in the land.
With reference to the last matter, we think it would be difficult for a jury in mány eases, among them the case at bar, to give a full, accurate and just answer to such a question. So many different matters combine to cause the depreciation in value, that it would be almost impossible to mention each of them, or that twelve men should agree as to the proportionate degree of each in causing such depreciation. One juror would naturally place more stress upon one cause than another, and while they might all agree that the market value of the farm was diminished a certain amount, yet they might come very far from agreeing as to’ the proportionate amount which each of the several causes contributed thereto. It would doubtless be proper when any particular matter or matters had been spoken of as tending to cause a depreciation in value, to submit questions as to such matters, and so counsel did; but to require a jury to state every consideration, which in their judgment tended to make the appropriation of the right of way an injury to the farm and the exact amount of the injury attributable to each of such considerations, would in many cases needlessly tend to perplex and embarrass them. Taking the whole case together, we think the judgment must be affirmed. We do this, as already indi
The case immediately preceding this, the Leavenworth, Topeka & Southwestern Eailway Company v. E. J. Holman, presents the same questions as this, with the exception of the one first named; and for the same reasons, the judgment in that case will be affirmed.